Bill C-26 (Historical)

Citizen's Arrest and Self-defence Act

An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons)

This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and persons.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you very much.

My second question is also for Mr. Gottardi.

In Bill C-26, we are continuing to make the distinction between a criminal act and a criminal offence. It says that a person can arrest an individual caught in the act only if it is a criminal act and not a criminal offence.

Is it reasonable to think that the average citizen can make that distinction on the fly?

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, Chair. Thank you to the witnesses who are here today to assist us. My question is for Mr. McLeod.

As I understand it, a security guard is usually privately and formally employed and is paid to protect property assets and/or people. I realize there are many variations of that job description. Security guards maintain a highly visible presence, and I assume that is done to deter illegal and/or inappropriate actions, by observing either directly or through patrols, for instance. You were talking about electronic surveillance and the modern technologies we have today to assist us when looking for signs of crime, fire, disorder, and that sort of thing.

Bill C-26 would allow security guards, as designated persons, to take appropriate action to prevent crimes from happening as long as they act reasonably.

I have a couple of questions. Should private security guards, in your view, be able to act, or should they just be reporting incidents back to their clients, employers, or emergency services, as appropriate? In other words, when security personnel are doing their jobs in the real world, what do you see as an appropriate limit between just reporting and actually acting?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

First of all, thank you to the witnesses for appearing—those we see and those we don't.

My question is directed to Mr. McLeod. Of course, the reforms proposed in Bill C-26 allow property owners, and persons authorized by them such as security guards, to arrest persons they find committing a criminal offence, whether the offence is seen via technology or as an eyewitness. It authorizes them to make the arrest at that time, or within a reasonable period of time—you've spoken about that—after they have found the person committing the offence. Of course, the property owner or the security guard in question has to have reasonable grounds, under the circumstances, for not calling a police officer to come to the site. You've talked about how the overwhelming amount of incidents would dictate that perhaps a police officer can't be there.

With that in mind, how important is it to allow people authorized by property owners, such as security guards, to conduct citizens' arrests? You've talked about saving money with this and about the fact that the police cannot attend because of the overwhelming number of incidents. Can you give us some examples to illustrate that?

[Françoise Boivin, NDP, Gatineau, QC]

Bill C-26 doesn't change anything from what you're already authorized to do.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I'd like to thank all the witnesses who have joined us this morning.

Mr. Gottardi, I share the concerns of the Canadian Bar Association. I read your brief carefully. Anyone who has practised in the field would agree that these are not the easiest criminal provisions to read and understand, in terms of intent. But this is part of the everyday reality of crown attorneys, police officers, members of the controlling forces and defence lawyers. Everyone agrees that if everything were simplified and clarified, it would be better. But we need to be careful. If there's one thing I've learned as a lawyer, it's that simple legislative documents and lawyers aren't many. I haven't seen many in the course of my career.

We also heard from Mr. McLeod, of the Association of Professional Security Agencies. One of my concerns deals with citizen's arrests.

Mr. McLeod, according to the provision as drafted, I don't see how you could be involved closely or remotely in the arrest of someone without a warrant if you did not witness the incident. You aren't an extension of the person whose property was stolen. Is that how you interpret this provision? I felt like there had been a bit of lobbying, that you would be allowed to do a little more to lighten the load of the public authorities. But people from the police association told us that it should be left in their hands since they were properly trained to do this work.

I'd like to know what your position is with respect to Bill C-26.

[Eric Gottardi]

Yes, thank you.

I think it might have been a lot easier just to come to Ottawa to appear before the committee today. I apologize for not being there in person. I know that we're a bit late because of the delay, so I'll curtail my remarks a little so we can get straight to the questions.

I want to thank the committee for the invitation to present today the CBA's views on Bill C-26. As some of you may know, the CBA is a national association of over 37,000 lawyers, law students, notaries, academics, and judges. An important aspect of our mandate is seeking improvements in the law and the administration of justice. That's the perspective from which I appear before you today.

Personally, my capacity is as the vice-chair of the CBA's national criminal justice section. This section consists of a balance of crown and defence lawyers from every part of the country. I am a lawyer in Vancouver who does both crown and defence work.

The Criminal Code provisions concerning self-defence, defence of others, and defence of property have been the subject of decades of criticism and frustration for lawyers and judges, due to the multiplicity of code sections and subsections and many variations among their elements. Many high-profile cases in Canada have faltered on jury instructions regarding self-defence.

The CBA national criminal justice section has called for reform of these provisions of the code for many years—for over 25 years, in fact—so it's with great happiness that we see this bill coming forward with the proposed amendments to the law of self-defence. In particular, we support the bill's creation of two comprehensive sections concerning the defence of self and the defence of others, and indeed including the defence of property as well.

This bill represents an historic and significant step in the evolution of the law and, hopefully, the simplification of the law of self-defence. It's in light of that historical context and the likelihood that if this bill is passed, this iteration of the law of self-defence will remain on the books for many decades, that there are some small amendments the CBA proposes to help fine-tune the provisions contained in Bill C-26 that are related to self-defence.

Hopefully, we'll get into some of those details later as questions come, but in particular, those suggested amendments are set out in detail at pages 2, 3, and 5 of our submission before you today.

The second aspect of the bill is the expansion of the powers of citizen's arrest. It's that aspect of the bill that the CBA does not support.

We're concerned that the bill may encourage citizens who are untrained in arrests to risk their own personal harm and risk liability for wrongful arrests. We know that arrestees are more likely to resist citizen's arrests than arrests by the police, and ordinary citizens are less likely to have a knowledge of physical controls or tactical communication to deal with individuals who actually resist those efforts of arrest.

We're also concerned that the changes will encourage unjustified arrests by private security personnel, who are not subject to public oversight in the same way that police agencies are. Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances.

So it's a dual approach that we have to the bill today. We're excited and happy to support the long-awaited amendments to the law of self-defence. It's a welcome reform. On the other hand, or in our view, the changes to the law of citizen's arrest are just unnecessary, and in fact may put Canadians at further risk.

Thank you.

[Tom Stamatakis, President, Canadian Police Association]

I do. Thank you, Mr. Chair.

I apologize for not being there in person today.

For those of you today who might not be familiar with the Canadian Police Association, we are the national voice for 41,000 of Canada's front-line law enforcement personnel. We represent police personnel serving in 160 police services across Canada, from Canada's smallest towns and villages to those working in our largest municipal and provincial police services, as well as members of the RCMP, railway police, and first nations police.

It's my pleasure to be able to speak to you today regarding Bill C-26. I would like to offer a few brief opening remarks in order to keep as much time as possible to answer any questions you might have regarding this legislation and the impact it will have on Canadian law enforcement personnel.

Obviously the December 2009 case of Toronto store owner David Chen showed that Canada's current laws regarding the right of citizens to effect an arrest in order to protect themselves or their property required some consideration. That being said, we should always take care to underline, particularly for the sake of public safety, the fact that the preservation of the public peace should always be the responsibility of professional, trained, and recognized law enforcement personnel.

I should note that before Bill C-26 was originally introduced in the last Parliament as the former Bill C-60, the Minister of Justice and his department consulted extensively with our association and other law enforcement stakeholders to ensure that our concerns were reflected in this legislation. We appreciate their efforts to reach out in this regard, and as always we look forward to further cooperation whenever it's possible.

With respect to this specific legislation, our association is generally supportive of the goals and methods contained within Bill C-26. I would like to take this opportunity, however, to outline a few brief concerns.

Obviously, law enforcement personnel are the beneficiaries of a significant amount of training in areas such as the proper use of force, methods of detention, and arrest powers, which average citizens are not privy to. Therefore, it's vitally important that we continue to educate the public that despite any changes to the powers of citizen's arrest in Canada, the first reaction people should have if they witness a crime being committed is to call the police and allow our law enforcement professionals to do the jobs they're trained to do.

We should also take care that any changes made within this legislation do not have the unintended consequence of broadening the current mandate of private security, particularly with respect to loss prevention in commercial settings. While I am sympathetic towards store owners and businesses that wish to minimize losses with respect to the very real concern of shoplifting, which costs us all in the long run, we must take care not to go too far in the pursuit of protecting property.

For instance, it can be tempting to believe that all shoplifters are teenagers committing a crime of opportunity. But factors such as the presence of accomplices or even, in the worst case, gang affiliation can lead to increased personal danger for private security personnel who try to effect an arrest. We definitely don't want to see a situation in which a citizen's arrest is made only to find the suspects' friends or accomplices returning for a measure of retribution.

In the end, property owners, shopkeepers, and businesses that are looking to prevent losses should take the basic steps necessary to assist law enforcement, including installing functioning and clear cameras where necessary, as well as quickly reporting any suspected activity to local police agencies, rather than looking to take the law into their own hands.

In summary, Bill C-26 does help clarify some of the situations in which it might be appropriate for a private citizen to act in defence of themselves or their property, but we must avoid any indication or implication that these actions should be a replacement for professional law enforcement personnel.

I do appreciate the opportunity to address you today and certainly welcome any and all questions you might have on how this legislation impacts our members.

Thank you.

[Kim Pate]

Okay. Well, I've cut it down, so hopefully we'll have a lot of time for discussion.

Our organization has long been interested in this work. In fact, we responded to the 1993 white paper the Department of Justice put out on this issue, as well as the 1998 Department of Justice review of the defences of self-defence, defence of others, and defence of property. We certainly have a position, which I've provided to the clerk, that is a position from that time and is more comprehensive than this bill, but I thought it might be of use to the committee members as you're studying the bill.

I will refer to a few of the areas in that brief and also, obviously, comment specifically on the provisions of Bill C-26.

I also want to say that I've had the opportunity to read the brief from the Canadian Bar Association. In substance, we are in support of most of the recommendations. In particular, we are in agreement with the notion that the subjective element of proposed subsection 34(2) needs to be enhanced.

In fact, we would suggest that there needs to be some discussion of some particular areas in terms of the issues that battered women in particular face, because it's an area where they have not always been able to avail themselves of the self-defence provisions. We think of some of the systemic issues that were highlighted in the Malott case by the Supreme Court of Canada and then picked up by Madam Justice Ratushny when she did the self-defence review of the cases of women who had been jailed for using lethal force and who had not had the opportunity to avail themselves of self-defence, despite the decision of the Supreme Court of Canada in Lavallee.

In particular, we are concerned that the subjective pattern of reasonableness needs to take into account issues like course of control, issues like the histories of violence and abuse that have existed, and also that the particular features of the accused's experience need to be part of the explanation and part of the consideration that the court would give, so should be included in the self-defence provisions.

We have some concern that it also be a charter-driven analysis, so that when someone is making a mistake or perceives an ongoing risk, that it be a charter-driven process. So things like hate crimes, like homosexual panic, cannot be invoked in those sorts of situations, and we have to be talking about not only subjective perspectives, but subjective perspectives that are equality based and protected by our charter.

We also would like to see in the provisions that relate to defence of property a clear indication that there's a value that life will take precedence over property. That isn't there. It's certainly one of the recommendations we made in 1998 and 1999 to the Department of Justice. We would reiterate that view: that in fact we need to ensure the value of life over property.

We also think there should be some analysis of the impact on indigenous peoples who are attempting to invoke the protection of their property—historic property rights—and certainly that's not reflected in the current legislation.

We are not in agreement with expanding citizen arrest areas because we are extremely concerned about the potential consequences of largely untrained individuals attempting to arrest and attempting to assess the scale of risk or the risk. We therefore are concerned about that. I'm concerned that in fact it might encourage a proliferation of private security interests, instead of the publicly accountable policing services whose responsibility it is currently to undertake arrests.

We also think that it may in fact be a concern for security companies and for others who are engaged in criminal justice work, in that it may in fact be perceived at times as requiring some sort of obligation. Certainly, there has been raised by police officers—as well as parole officers—a concern that an extension of this might be that there would be an expectation that arrests be undertaken by individuals whose job it isn't usually to do that, who would themselves in fact call the police.

We also think there should be clearly indicated throughout these areas that there's a duty to retreat on the part of individuals who are using force and to whom those who might try to use these defences would be responding, so again, it would be part of the charter-based analysis.

Those are, very quickly and briefly, our comments. We look forward to the perspectives of our co-panellists and to the questions from the committee.

Thank you very much.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

Mr. Chair, I do. Thank you very much.

And thank you to the committee for inviting the Canadian Association of Elizabeth Fry Societies to present this morning. As some and perhaps all of you are aware, our organization is composed of 26 members who are across the country and provide services that range from early intervention to prison assistance and community re-entry. Our members work with marginalized, victimized, criminalized, and institutionalized women and girls throughout the country. As some of you know, some of our members are in fact the only groups who work with our victimized women and girls and are the only victim services in some of their areas.

We present on Bill C-26 from this perspective. We and our members thank you for the opportunity to present.

I'll try to keep our comments brief, and I'd be happy to have discussion.

[The Chair, Conservative, Dave MacKenzie]

We'll call the meeting to order. It's meeting number 19 of the Standing Committee on Justice and Human Rights.

Today we have some witnesses appearing before the committee, dealing with Bill C-26, An Act to amend the Criminal Code . We have Ms. Pate here today from the Canadian Association of Elizabeth Fry Societies and Mr. McLeod here from the Association of Professional Security Agencies.

We have by video conference two witnesses, one from the Canadian Bar Association, Mr. Gottardi, and one from the Canadian Police Association. I'm not sure if we have both video conferences. We have a little technical problem at this point with the Canadian Bar Association's connection, so we have Mr. Stamatakis here from the Canadian Police Association.

Welcome to you all. If you have an opening address, we'd like to keep them to five minutes. I'll let you know when you have one minute left, and then we'll begin the rounds of questions from each side.

Ms. Pate, would you like to go first, if you have an opening address?

[Catherine Kane]

That conduct is I think still covered by subsection 494(1) of the Criminal Code, which is not being changed by Bill C-26. We're only changing subsection 494(2), which deals only with citizen's arrest in the property context, if someone finds someone committing an offence.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and my thanks to the officials from the Department of Justice for their expertise with respect to this important matter.

Following up on some questions that Mr. Jean asked with respect to how broad a net Bill C-26 will cast in providing defences, I'm curious to hear your thoughts. In the existing law, as I understand it, self-defence is limited to justified acts of force. But if I could have you think outside the box, one could imagine a situation where an individual might have to take evasive action to avoid an attack, and in the course of that evasive action this individual might steal a car. That act would normally be illegal, but the person might have to do it in self-defence. I'm curious what your thoughts might be on the applicability of Bill C-26 in that type of situation.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Good afternoon, Minister.

I have some questions for you on the consequences Bill C-26 is going to have on the work of private security agencies.

First, will the changes proposed in this bill affect the work of security agents? And moreover, by broadening the provisions governing citizens' arrests, are we not opening the door to possible abuse on the part of security agents? Finally, should there not be more restrictive regulations governing security agents in order to limit their powers, so as to distinguish between ordinary citizens and merchants?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I want to thank Minister Nicholson and the two witnesses, Ms. Klineberg and Ms. Kane, for having come to testify before us today. I am sure that your clarifications will make the bill more comprehensible.

Minister, we certainly acknowledge that the police are the principal source of protection against crime amongst the public, and clearly Bill C-26 does not alter that.

I'm wondering if you could provide us with your thoughts on this. Some people have argued that perhaps the changes brought by Bill C-26 might encourage an atmosphere of vigilantism.

[Rob Nicholson, Conservative, Niagara Falls, ON]

By all means, and thank you, Mr. Chairman.

I'm pleased to appear before this committee to present the citizen's arrest and self-defence act. This legislation aims to do three things: number one, it aims to expand the time in which a citizen may arrest another citizen for an offence or in relation to property; number two, it aims to replace the existing laws on self-defence with a new and simplified defence; and number three, similarly, it aims to replace the existing laws on defence of property with a new and simplified defence.

The members of the committee are no doubt aware of recent very public events involving citizens who resorted to using force against persons they suspected had stolen or damaged their property.

In addition to raising concerns about the limits of the power of citizen's arrest, these cases have also generated confusion about the relationship between citizen's arrest and defence of property, which itself is closely associated with the defence of self-defence.

These three mechanisms share common elements and arise in similar fact situations, which is why our government is presenting all three in Bill C-26. They typically come before the courts as defences when a person has done something that would otherwise be an offence, which they did for the purpose of apprehending a suspect or defending property or a person. Each provision reflects a different purpose for acting in emergency situations.

The bill's proposal to change the law on citizen's arrest is straightforward. Subsection 494(2) currently permits a property owner or a person in lawful possession of property to arrest a person they find in the act of committing an offence on or in relation to that property. Currently this provision does not allow for the arrest of a suspect even a short period of time after they were detected committing the crime.

This bill will allow more flexibility in the timing of an arrest. Specifically, it would amend subsection 494(2) to allow a person to arrest another within a reasonable time of finding the suspect committing the offence.

Some stakeholders may express concerns about the risks associated with permitting more arrests by citizens and the possible encouragement of vigilantes. I agree that, wherever possible, arrests should be undertaken by trained law enforcement officers, but we know this may not always be possible. I'm confident that the expansion of the citizen's arrest powers will not lead to vigilantism. Indeed the approach of Bill C-26 sets out a reasonable compromise. It extends the period of time for a citizen's arrest, but any delay must be reasonable. This power is itself limited to the narrow set of cases involving crimes of or in relation to property.

In addition, before making use of the extended time period, the arresting person must believe on reasonable grounds that it's not feasible in the circumstances for a peace officer to make the arrest. The existing law also requires the arresting person to turn over the suspect to police as soon as possible. These safeguards will help ensure that individuals who make a citizen's arrest are involved in law enforcement only to the degree necessary, and that the police maintain their primary law enforcement function. Arrests are dangerous and unpredictable, and our government will continue to urge Canadians to leave this job to professionals wherever possible, and in every case to exercise extreme caution.

In terms of the defences of property and person, the bill replaces the current multitude of provisions, which are largely unchanged from the original text enacted in 1892, and actually they had a pretty extensive history for 1892. These are basically the provisions that were contained in the laws of Upper Canada in or about 1840.

We have replaced those provisions with a simple, easy-to-apply rule for each defence. For decades criminal practitioners, the Canadian Bar Association, the Supreme Court of Canada, academics, and many others have criticized the law of self-defence primarily, but also the law of defence of property, as being written in an unnecessarily complex and confusing way.

The complexity of the law is not without serious consequence. It can lead to charging decisions that fail to take into account the merits of the defences in particular situations. It can confuse juries, and it can give rise to unnecessary grounds of appeal, which cost the justice system valuable time and resources. The law should be clear and clearly understood by the public, the police, prosecutors, and the court.

Bill C-26 meets those objectives. It makes the act more specific and simplifies it without sacrificing existing legal protections.

The basic elements of both defences are the same and can be easily stated. Whether a person is defending themselves or another person, or defending property in their possession, the general rule will be that they can undertake any acts for the purposes of protecting or defending property or a person as long as they reasonably perceive a threat, and their acts, including their use of force, are reasonable in the circumstances.

There are some special features of each defence that I would like to briefly mention. In respect of self-defence, an additional feature proposed in this bill is a non-exhaustive list of factors to help guide the determination of whether acts taken for a defensive purpose are reasonable. Clearly, what is reasonable depends upon the circumstances of each individual case; however, a number of factors commonly arise in self-defence cases and are familiar to the courts.

For instance, relevant considerations include whether either or both parties had a weapon and whether there was a pre-existing relationship between the parties, in particular one that included violence. Proportionality between the threat and the response is also highly relevant. The greater the threat one faces, the greater the actions one can take to defend against that threat.

The list can be employed to facilitate and improve charging and prosecution decisions. In court, the list will no doubt be a useful reference for the judge to use in instructing the jury. A list such as this also indicates to the courts that existing jurisprudence on these issues should continue to apply. We don't have to start from scratch.

The right to defend oneself from threats is fundamental. It's therefore tremendously important that we get it right and that we provide guidance as we shift from a highly detailed set of laws to a defence based on more general elements.

Now, with respect to the defence of property, the defence of property has as its core the same basic elements as self-defence, namely, a reasonable perception of a threat, a defensive purpose, and actions that are reasonable in the circumstances. However, the defence of property is necessarily more complex than self-defence.

There are many different types of property claims and interests, most of which are governed by provincial laws. Property concepts are implicated in the defence. The idea of peaceable possession of property is an additional condition for accessing the defence of property.

This term is used in the current law and has been interpreted by the courts to mean possession that is not subject to a serious challenge or that is not likely to lead to violence: for example, a thief who stole property and is not in peaceable possession of that property and cannot legally use force to defend his possession. It makes sense.

The criminal law prioritizes the preservation of the public peace and the status quo. The law protects possession, not ownership. Ownership disputes must be resolved by the civil courts, not through criminal action. The law permits what would otherwise be a crime to defend against emergency threats that risk permanent loss of or destruction to property.

As a final note, I draw your attention to the fact that both defences contain a special rule in relation to their use by someone who claims to be defending against law enforcement actions, such as an arrest or the seizure of property pursuant to a warrant. The rule is this: unless the person reasonably believes that the peace officer is acting unlawfully in discharging their duties, defensive force may not be used in this context.

Bill C-26 is consistent with the current law in these situations, but hopefully—as I believe it does—expresses the law more clearly. I encourage the members to support this legislative package, which aims to allow citizens more latitude in arresting individuals they have seen commit an offence on or in relation to property and to bring our laws of self-defence and defence of property from the 19th century into the 21st century.

Thank you.